Because they remain hospitalized for longer periods, drug-addicted newborns have average hospital bills of $41,000, compared with $7,200 for a typical birth. / Atlanta Journal-Constitution / File / AP

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The Tennessean

Health officials and law enforcement are at odds over proposed legislation on how to deal with the rising number of Tennessee children born addicted to prescription drugs.

Doctors and health advocates are pushing for the “Safe Harbor Act,” which would give pregnant women incentives to get into drug treatment programs — first by moving them to the front of the line for available spots, and then by guaranteeing newborns won’t be taken away by the Department of Children’s Services solely because of the drug use, as long as the women continue their treatment.

“It is, absolutely, different approaches,” said Gary Zelizer, director of government affairs for the Tennessee Medical Association and a supporter of the treatment bill. “Quite honestly, any kind of punitive approach, from a health care perspective, drives women underground. It doesn’t encourage them to get treatment.”

The Safe Harbor Act passed the Senate and will be taken up by a House subcommittee on health on Tuesday — the same day the subcommittee on criminal justice is scheduled to consider the prosecution bill, which would allow drug-using pregnant mothers to be charged with assault or homicide.

“We don’t have any problem with these mothers trying to get treatment and trying to get help, but if we have a child that’s damaged because of this drug injection, or stillborn, we need the ability to prosecute these ladies,” said Wally Kirby, executive director of the Tennessee District Attorneys General Conference.

The flurry of legislation comes on the heels of a statewide push — led by the Tennessee Health Department and joined by mental health and children’s services officials — to confront what officials describe as a worsening epidemic.

As part of that effort, the state is now counting incidents of newborn addiction every week, seeking to control the availability of narcotic painkillers, asking the federal government to add a stronger health warning on such drugs, and investigating the best ways to treat addicted newborns.

In the past two years, Tennessee counted more than 1,000 babies born dependent on drugs — often painkillers that cause seizures, vomiting and hyperactivity.

Such numbers are a tenfold increase over the past decade. Now, 6.5 of every 1,000 births are infants suffering from what doctors call neonatal abstinence syndrome, or NAS.

Many of those newborns — almost one of every five — end up in the custody of the Department of Children’s Services, according to state data. DCS officials say that’s a major reason that the number of children in state custody has increased to more than 8,000, up from around 6,000 in 2006.

Although not specific to newborns, a Tennessean analysis of other DCS data shows five consecutive years in which an increasing number of children were exposed to drugs and taken into custody because of drug use in their homes.

Often, discovery of an addicted newborn leads to brothers and sisters also coming into custody, DCS officials said.

The Safe Harbor Act, filed by state Sen. Ken Yager, R-Harriman, would not allow DCS to move for termination of parental rights, “solely because of the patient’s use of prescription drugs … during the term of her pregnancy.”

He said DCS could still be involved with a family if other factors cause concern.

State Rep. Sherry Jones, D-Antioch, a frequent critic of DCS, said she would likely support the bills that push for treatment. But she said some DCS monitoring is probably warranted in cases of drug-addicted babies.

“You don’t want to send a baby back with somebody who is so strung out they can’t care for the baby,” she said.

Debate gains attention

Since the state’s announcement of new measures for combating infant addiction, the discussion has moved to the Capitol, where four pieces of legislation directly address drug use during pregnancy.

Similar to the Safe Harbor Act, companion bills filed in both houses would direct the Health Department to create a plan so that at least 90 percent of pregnant women can have access to prenatal care during the first trimester.

Doctors and state health officials have been speaking to lawmakers about the issue, including at hearings in the past two weeks. And as the bills come up for votes this week, Health Commissioner John Dreyzehner will present information on neonatal abstinence syndrome to child advocates at an annual summit in Nashville on Tuesday.

At a hearing Feb. 27, Dreyzehner emphasized that treatment for the women — rather than punishment — was crucial for achieving healthier births and lowering hospital costs.

“We cannot arrest our way out of the problem,” he said. “I don’t think we benefit mother or child by discouraging women from seeking prenatal care in any way. I think our cost goes up if we take that tack.”

Because they remain hospitalized for longer periods, drug-addicted newborns have average hospital bills of $41,000, compared with $7,200 for a typical birth. Most of these births are covered by taxpayer-funded TennCare.

During the debate, some lawmakers questioned why Yager’s bill targets only prescription drugs. He responded that he wanted to begin by targeting a small population. A law that is too broad, he said, could make so many pregnant mothers eligible that preventive treatment costs would sink the effort altogether.

“We’ve got to give people an incentive to get cleaned up,” Yager said later. “The pain pill epidemic in this state is so widespread, there’s no one simple solution to it.”

There has not been as much discussion on two other pieces of legislation addressing prosecution of women for their actions during pregnancy.

Companion bills HB1295 and SB1391 would allow mothers to be prosecuted for drug use during pregnancy.

Zelizer, with the state medical association, said he spoke with state Rep. Terri Lynn Weaver, R-Lancaster, about concerns he has about her prosecution bill, HB1295. A national advocacy group for pregnant women also wrote her a 20-page letter outlining concerns. Weaver could not be reached.

Sen. Brian Kelsey, R-Germantown, filed in the Senate.

Separately, companion bills HB627 and SB977 propose changing the state’s definition of a crime victim to allow for an embryo or fetus to be considered a victim in assaultive offenses or homicide, which would reverse a law passed last year. Sen. Randy McNally, R-Oak Ridge, and Rep. Ryan Williams, R-Cookeville, are carrying those bills.

State officials say the medical community is wrestling with how best to treat the mothers and infants — particularly whether they should be weaned off the drugs during pregnancy or after birth.

A study co-authored by the director of the Vanderbilt Addiction Center in Nashville has been part of that debate. The study found that the use of buprenorphine to treat drug-addicted babies shortened the weaning period compared with methadone. The willingness of insurers to pay for such drugs has also fluctuated.